2017 (5) TMI 947 - AT - Central Excise

Goods lost during storage of petroleum products on account of natural evaporation - demand on the ground that storage is exceeding the limit as prescribed by CBEC - Held that - The Appellant is a Govt. of India Undertaking. There are no malafides involved and there is no clandestine removal of the goods. The goods have been lost in the natural course because of their volatile nature - the matter is squarely covered by the Tribunal s decision in the case of The Commissioner C & C.E, Hyderabad Versus M/s Bharat Petroleum Corpn. Ltd. 2016 (6) TMI 1020 - CESTAT HYDERABAD , where it was held that The fact that loss in storage is bound to take place for petroleum products is well accepted, and demand was set aside as the losses are due to natural causes - the subject storage loss is well accepted fact - demand set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
- Appeal against Order In Appeal confirming duty payment and penalty for goods lost during storage of petroleum products.
- Whether the losses in storage exceeding the prescribed limit are genuine and due to natural causes.
- Applicability of Tribunal decision in a similar case to the current appeal.

Analysis:
The appellant, a government undertaking, appealed against an order confirming duty payment and penalty for losses during storage of petroleum products. The appellant stored goods in a registered warehouse and paid duty upon clearance. The losses in storage exceeded the prescribed limit of 0.5%, leading to a demand notice. The main contention was whether the losses were genuine and due to the volatile nature of the products. The Tribunal noted that there was no evidence of malafides or clandestine removal, and losses were due to natural causes. The Tribunal referred to a previous decision emphasizing that operational losses exceeding the prescribed limit can be condoned if genuine. The department failed to scrutinize the losses adequately despite disclosures in returns. The Tribunal found no infirmity in the impugned order and dismissed the appeal based on the accepted fact of storage losses due to natural causes.

The Tribunal's decision in a similar case was cited to support the appellant's argument that the storage losses were genuine and well accepted. The Tribunal emphasized that the duty demand based on storage losses exceeding the prescribed limit could not be sustained. Consequently, the impugned order was set aside, and the appeal was allowed with any consequential benefit. The judgment highlighted the lack of malafides, the absence of clandestine removal, and the natural causes leading to storage losses. The appellant's status as a government undertaking further supported the finding that there was no deliberate evasion of duty. The decision underscored the need for the department to scrutinize cases with losses exceeding the prescribed limit and to consider natural causes before raising a demand.